A Special Prosecutor . . . For What?

(Reuters photo: Scott Morgan) There is no crime to probe in the matter of the Trump campaign’s contact with Russians.

So, Attorney General Jeff Sessions has recused himself. Great!

Just one question: From what?

Yes, yes, Sessions is a good and decent man. He is a scrupulous lawyer who cares about his reputation. Thus, in stark contrast to Obama administration attorneys general, he strictly applied — I’d say he hyper-applied — the ethical standard that calls on a lawyer to recuse himself from a matter in which his participation as counsel would create the mere appearance of impropriety. The standard is eminently sensible because the legitimacy of our judicial system depends not only on its actually being on the up and up but on its being perceived as such.

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If it looks like you’re conflicted, you step aside, period. Simple, right? Well . . .

Much as I admire our AG’s virtue (and you know I do), let’s pause the preen parade for just a moment. There’s a tiny word in that just-described ethical standard that we need to take note of: matter. A lawyer doesn’t just recuse himself. He recuses himself from a legal matter — from participation in a case. When we are talking about the criminal law, that means recusal from a prospective prosecution. You need a crime for that. Prosecutors do not recuse themselves from fishing expeditions or partisan narratives.

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So . . . what is the crime?

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We need to ask this question because, rest assured, this does not end with Jeff Sessions. No more than it ended with Mike Flynn. No more than it would end if the media-Democrat complex were to obtain the much coveted scalp of Steve Bannon, Kellyanne Conway, Seb Gorka, or one of the other Beltway gate-crashers we’ve come to know over the last six improbable months. The objective is President Trump: preferably, his impeachment and removal; but second prize, his mortal political wounding by a thousand cuts just in time for 2018 and 2020, would surely do.

As I tried to explain in my book Faithless Execution (2014), impeachment cases do not just spontaneously appear. They have to be built over time, and with vigor, because most Americans — even those who oppose a president politically — do not want the wrenching divisiveness and national instability that impeachment unavoidably entails. The reluctant public must be convinced that there is urgency, that the president’s demonstrated unfitness has created a crisis that must be dealt with.

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But remember: Democrats are from Mars and Republicans are from Venus.

Democrats have an iron-cast stomach and an unseemly zeal for upheaval. They’re ready to build a case. All they lack is a case.

In the matter of Barack Obama, the GOP had an actual case based on systematic executive overreach and the empowering of America’s enemies, the kind of threat to the constitutional framework that induced Madison to regard the impeachment remedy as “indispensable.” Yet agitating for upheaval is against the Republican character (a generally good trait, though paralyzing in an actual crisis). Plus, President Obama’s personal popularity always insulated the unpopularity of his agenda and bathed even his most lawless actions in a glow of good intentions. Republicans had no stomach for mentioning impeachment, much less building a case.

Democrats, by contrast, have an iron-cast stomach and an unseemly zeal for upheaval. They’re ready to build. All they lack is a case. No problem: They have made one up, and they are confident not only that they will build it into a national crisis of confidence in the presidency but that the Republicans will help them.

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And lo and behold, Republicans are helping them. Unwittingly perhaps, but helping all the same.

Let’s try to keep our eye on the ball here. The “Russia hacked the election” narrative is laughably false. Russian intelligence, at most, hacked e-mail accounts of prominent Democrats during the campaign. That is not hacking the election, which would require manipulating the voting process. And it almost certainly had zero impact on the outcome of the election. Remember, these are the same Democrats who spent nearly two years telling you that Hillary Clinton’s own scandalous e-mails made no difference — she was going to glide to victory. Do they really expect you to believe she lost because of John Podesta’s comparatively benign e-mails (Thought experiment: Outside us political wonks, what percentage of the American electorate actually knows who the hell John Podesta is?)

Let’s look hard at the farcical “Russia hacked the election” narrative and ask: Have any crimes been committed, and by whom?

Yes, we know that crimes of hacking were committed. Again, this was not hacking of the election; it was hacking of Democrats, during the campaign, months before the election. Not only do we know there were hacking crimes; government investigators tell us they know exactly who did it: Russian intelligence services. That was what the FBI pronounced in the largely content-free report it released jointly with the CIA and NSA. Thus, the only apparent crimes have already been solved.

Yes, we know that crimes of hacking were committed. Again, this was not hacking of the election; it was hacking of Democrats, during the campaign, months before the election.

“Not so fast,” you’re thinking, “what about collusion between the Trump campaign and the Russians?” And why wouldn’t you ask that? After all, the media and Democrats have been hammering “Russia hacked the election” non-stop for three months; Mike Flynn has been ousted from his perch as national security adviser after meeting with a Russian ambassador; and now we have Jeff Sessions, after meeting with the very same Russian ambassador, recusing himself from . . . er . . . well . . . um . . . something, I guess.

But what something? Is there any fire under all that smoke?

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Start with this: There is no evidence — none, not a speck, not even a little one — that Donald Trump or anyone associated with him had anything whatsoever to do with the hacking of Democratic accounts. Remember, that’s the only crime here. And the Trump campaign had utterly nothing to do with it. We know this for two reasons.

First, in its ballyhooed report, the FBI told us not only that the Russians are the culprits but also that the Democrats were not the only targets. Putin’s regime, we are told, targeted both major parties. This was a Russian-government effort to compromise the American government, no matter which candidate ended up running it. It should come as no surprise, then, that the FBI made no allegation that Trump and his associates were complicit.

Second, it’s not like the FBI and the Obama Justice Department didn’t try to make a case against Trump. In fact, they scorched the earth.

Besides the illegal leaks of classified information that have fueled the “Russia hacked the election” scam, this is the most outrageous and studiously unmentioned scandal of the election. While the commentariat was rending its garments over the mere prospect that Trump might have his political adversary, Hillary Clinton, investigated if he won the election, Obama was actually having Trump investigated.

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To rehearse briefly, in the weeks prior to June 2016, the FBI did a preliminary investigation, apparently based on concerns about a server at Trump Tower that allegedly had some connection to Russian financial institutions. Even if there were such a connection, it is not a crime to do business with Russian banks — lots of Americans do. It should come as no surprise, then, that the FBI found no impropriety and did not proceed with a criminal investigation.

What is surprising, though, is that the case was not closed down.

Instead, the Obama Justice Department decided to pursue the matter as a national-security investigation under the Foreign Intelligence Surveillance Act (FISA). In June, it sought the FISA court’s permission to conduct surveillance on a number of Trump associates — and perhaps even Trump himself. It has been reported that Trump was “named” in the application, but it is not publicly known whether he (a) was named as a proposed wiretap target, or (b) was just mentioned in passing in the application.

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Understand the significance of this: Only the Justice Department litigates before the FISA court; this was not some rogue investigators; this was a high level of Obama’s Justice Department — the same institution that, at that very moment, was whitewashing the Clinton e-mail scandal. And when Justice seeks FISA surveillance authority, it is essentially telling that court that there is probable cause to believe that the targets have acted as agents of a foreign power — that’s the only basis for getting a FISA warrant.

In this instance, the FISA court apparently found the Obama Justice Department’s presentation to be so weak that it refused to authorize the surveillance. That is telling, because the FISA court is generally very accommodating of government surveillance requests. Unwilling to take no for an answer, the Obama Justice Department came back to the FISA court in October — i.e., in the stretch run of the presidential campaign. According to various reports (and mind you, FISA applications are classified, so the leaks are illegal), the October application was much narrower than the earlier one and did not mention Donald Trump. The FISA Court granted this application, and for all we know the investigation is continuing.

There are two significant takeaways from this. First, a FISA national-security investigation is not a criminal investigation. It is not a probe to uncover criminal activity; it is a classified effort to discover what a potentially hostile foreign government may be up to on American soil. It does not get an assigned prosecutor because the purpose is not to prove anything publicly in court — indeed, it is a major no-no for the Justice Department to use its FISA authority pretextually, for the real purpose of trying to build a criminal investigation.

Second, remember when the New York Times gleefully reported in mid January that three Trump associates — Paul Manafort (who was ousted as campaign manager in August), Manafort’s associate Roger Stone, and Trump’s investor friend Carter Page — were being investigated over alleged ties to Russia? Well, deep into the report, after all the heavy breathing about potential Trump–Russia ties, the Times report conceded that this investigation may very well have nothing to do with Trump, the presidential campaign, or Russian hacking. To the contrary, indications were that it arose out of consulting Manafort had done for Putin’s puppet party in Ukraine, beginning in 2005. That engagement is surely unsavory, but there may not be anything criminal about it, and it is not in any event related to whatever Russia was up to in the American presidential election of 2016.

Bottom line: The Obama Justice Department and the FBI spent at least eight months searching for Trump–Russia ties. They found nothing criminal, and clearly nothing connecting Trump to Russian hacking. Don’t get me wrong: I am as troubled as anyone by Trump’s public solicitude toward Putin, some of which has crossed the line into repugnance. But we’re talking about crime here, not policy foolishness. Where’s the crime?

Michael Flynn was not fired for speaking with the Russian ambassador. He was fired for failing to provide a competent summary of their conversation to senior Trump officials.

And what else is propping up the “Russia hacked the election” narrative? First there is General Flynn. He had a conversation with Russian ambassador Sergey Kislyak, during which Kislyak raised the subject of sanctions imposed earlier that day by Obama. But there was nothing illegal or improper about this conversation: Flynn was part of the Trump transition and about to become national security adviser, so he was supposed to be reaching out to foreign governments. And, as the New York Times acknowledged, though the FBI has a recording of the conversation (because the Russian ambassador was under surveillance), and though the Bureau, the Obama Justice Department, and what the Times gingerly called Obama’s “advisers” carefully combed over every word of it, Flynn made no commitments to address the Russian concerns — the Times: “Obama officials asked the FBI if a quid pro quo had been discussed on the call, and the answer came back no.”

That is the main point. Flynn was not fired for speaking with the Russian ambassador. He was fired for failing to provide a competent summary of their conversation to senior Trump officials. Again: no crime, nothing to do with hacking, and nothing to do with the election.

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And now, finally, we have Jeff Sessions. He, too, met with the Russian ambassador. But so, it appears, has most of Washington — including Democratic Washington and, in particular, the Obama White House, which Ambassador Sergey Kislyak evidently visited at least 22 times.

Ironically, the overblown controversy surrounding Sessions this week was caused primarily by his haste to deny, forcefully, that he had any participation, as a Trump campaign surrogate, in communications with the Russian government regarding the 2016 election. This was the upshot of his response to a loaded question from Democratic senator Al Franken, who was relying on salacious allegations in a goofy and discredited dossier compiled for Trump opponents. Several media outlets had had access to the dossier for months but had not published it, despite their loathing of Trump, because its outlandish claims could not be substantiated. In any event, Sessions, like Flynn, made the error of mis-describing his contacts with the Russian ambassador. That is unfortunate, but there was nothing remotely criminal or inappropriate about the contacts themselves.

To summarize, there is no crime here except the ones committed by Russian intelligence. There is no evidence that Trump or his associates had any complicity in those hacking crimes. When all of the smoke is cleared away, the Democrats’ beef is that Trump may have benefited from Russia’s crimes. In reality, it is highly unlikely that the Russian hacking of Democratic e-mails had any effect on the outcome of the election. Even if we indulge the fantasy that it did, however, here’s the sad news the media won’t tell you: It is not a crime to benefit from other people’s crimes.

No one should know this better than Democrats. They could not have been more thrilled when, during the late stages of the campaign, someone — perhaps not the Russians — illegally leaked some of Trump’s tax-return information. Had Mrs. Clinton won, no one would have said Trump was denied because of Clinton-campaign ties to tax outlaws. Nor would Trump have been heard to complain about Clinton-campaign ties to NBC, which leaked the infamous Trump–Billy Bush tape. Washington would have yawned, and then snickered that Republicans lost because they nominated a lousy candidate.

To end where we started, what is the crime? What is the crime Sessions must be recused from investigating? What is the crime that a special counsel must be appointed to probe? There isn’t one. There’s nothing. But as the Democrats are showing, when your opposition is running scared, you can go a long way on nothing.

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